The High Court in Mzuzu has ordered the Malawi Police Service, the Director of Public Prosecutions to continue arresting and prosecuting gays and lesbians who commit homosexual offences in Malawi.

Judge Dingiswayo Madise: Rejects morotorium on gays

The prosecutions will continue pending a judicial review of the decisions, conduct and abdication of legal and constitutional duty by the Minister of Justice and Constitutional Affairs, the Director of Public Prosecutions and the Malawi Police Service.

A Judicial review is a type of court proceeding in which a Judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.

Judge Dingiswayo Madise made the order in Mzuzu on Monday warning any person who disobeyed the order shall be guilty of contempt of court and may be imprisoned, fined or may have their assets seized.

Madise also quashed the decision by the overzealous Malawi Police Service to set at liberty and drop any homosexual charges against Curthbert Kulemera and Kelvin Gonani, suspects of homosexual offence or offence of having carnal knowledge against the order of nature under section 153 of the Penal Code as illegal and unconstitutional.

The order follows an ex-parte application by Christopher Kammasamba, Reverend Patrick Banda and Pastor Tusalifye Mbeye and filed by Mzuzu based Lawyer George Kadzipatike of Jivason and Company.

The trio wanted the Court to declare as illegal and unconstitutional the decision by Minister of Justice and Constitutional affairs re-affirming government’s commitment to observing a moratorium on consensual homosexual offences or offences relating to having carnal knowledge against the order of nature.

They also wanted a declaration that the stoppage by the Executive branch of government to enforce the provisions of section 153 of the Penal Code by not arresting and prosecuting people suspected of having committed carnal knowledge against the order of nature, is selective and discriminatory against the Applicants.

“A declaration that the Director of Public Prosecutions (DPP) has no authority to suspend the operation of any law or to stop subjecting to the due process of the law all persons in the country who are suspected of having committed homosexual offences or offences of having carnal knowledge against the order of nature, under section 153 of the Penal Code,” reads part of the application.

The judge also ordered the applicants file an interpartes summons for continuation of the interlocutory/injunctory reliefs within 7 days and that hearing of the said interpartes summons must be held within 14 days.

In 2012, then-President Joyce Banda called on the parliament to repeal the existing sodomy law, under which same-sex relations are punishable by up to 14 years in prison. Following some resistance to the call for repeal, President Banda issued a moratorium on the enforcement of the sodomy law.

The debate just recently became public again when Kulemera and Gonani were arrested for their alleged sexual encounter. Both men were released, and after public criticism, the government of Malawi announced that it would no longer enforce the sodomy law.

According to lawyer for the pastors, George Kadzipatike, the injunction dated February 9 2016 granted by Judge Madise means everyone who were arrested on homosexuality charges and freed while moratorium was in force will have a case to answer.

The ministers, Director of Public Prosecutions and the police are the respondents in the case number 17 of 2016.

Meanwhile, Reverend Patrick Banda of Young Pastors Coalition of Malawi said President Peter Mutharika to make his position clear on the gay issue.

Press Secretary Gerald Viola said that President Mutharika plans to let Malawians decide on LGBT issues, even if that means putting it to a popular vote via a referendum. He has agreed to support the people, regardless of their decision.

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Is gay marriage an issue of debate in Malawi and Africa? The answer is NOOO. Advocates for gay marriages, you risking lives of the mislead Africans practising what a normal person is doing. For the one saying religion is a human construct, research shows that homosexual is not natural but a construct. There is no consensus among scholars to whether homosexual is intrinsic. Therefore, it will be wrong to criticize religious persons’ for the stand. Prove rationally that homosexuality is universal with evidence without basing on human right. Human Rights are not absolute and intrinsic. They are human constructs.

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2 years ago

Guest

Wakukaya

I dont know why human beings are talking about Gays yet God gave us authority over eache and evry creature including dogs and pigs. Yet I have never heard of Dogs and Pigs being Gay or Lesbian. Now I wonder, thats why pigs and dogs are better that Gays and Lesbians. Thats why Auncle BOB of Mashonaland and Ndebele land supports the idear that even Devil is not a Gay or a Lesbian.kkkkk

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2 years ago

Guest

Wakukaya

Thiis stupid behaviour is being propagated by Trapence and Mtambo of ChRR. These are the two morons who have been sent by the WEST through financing this medeocrity to destroy this country. I pray that the faith of TRAPEncE and Mtambo will not fail

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2 years ago

Guest

Dizamo

Those NGOS who feed on gays promotion should leave Malawi and stay in the West and do the promotion there. Are rights only for gays? We have people failing to go to school because they do not have fees, why do these NGOS promote such issues rather than issues which will not add anything to our development? Gays have nothing to offer us except shame to our families. Something that is shameful is not supposed to be tolerated. Why do these NGOS not support Chamba smoking? Can they tell us what makes people to smoke chamba? Is it what they… Read more »

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2 years ago

Guest

dadawakuboma

Malawi should not be in isolation but go by the rest of the world if she wants to develop. Govt (police, courts, etc) should not be busy with controlling people’s choice of who they want to love. It is love. If govt wants to be busy with pursuing irrelevant issues, it should begin to arrest the catholic clergy who do not marry when the Bible commands people to marry and multiply and fill the world. You see, religion is abstract, fake and nebulous and if you blindly follow it you’ll never develop. Malawi should immediately abolish sodomy laws. It is… Read more »

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2 years ago

Guest

Tim

This Judge is known by most to be EVIL and corrupt!.. In the Northern region people would prefer fight and kill each other before going to his Court.
This Judge obstructs justice…

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2 years ago

Guest

Myles

Mwana Wa Malawi
No respect will ever be given for any constitution that values the evil stupidity of religion more than the basic civil rights of its own people.
Homosexuality is found in every species of animal on the planet.What could be more normal or natural?
Religion is a scam,based on lies and greed.What could be more abnormal and unnatural?
Since religion is artificial, i.e. not real;people can and do change their gods and their religions at the drop of a hat.To use something as stupid and foolish to try to control who people love is sick and immoral.

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2 years ago

Guest

Daniel

The judge wants the rule of law upheld, which means as part of a government committing genocide the judge should be punished accordingly. The judge cannot have it both ways.

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2 years ago

Guest

koma

Mr Madise imirani U Pulezident. i will vote for you keept it up! Bravoooooo! Bravooooooooo!